Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Louisville Metro Government violated the Open Records Act in partially denying Courier-Journal reporter Dan Klepal's October 29 and November 6, 2009, requests for records relating to Metro Government's investigation into allegations of sexual harassment and retaliation leveled against former Metro Animal Services Director Gilles Meloche. Contingent on Louisville Metro's agreement to release the identities of individuals previously withheld, other than the identities of "third-party individuals who were alleged to have been subjected to sexual harassment, " we affirm the partial denial of Mr. Klepal's requests.
Following an exchange of open records requests and responses, and the disclosure of some 600 pages of redacted emails, a redacted copy of the statement that spawned the investigation, and redacted copies of the statements of Dr. Meloche and Assistant Director of Animal Services Wayne Zelinsky, The Courier-Journal initiated this appeal on December 18, 2009. 1 The Courier objected to Metro Government's blanket redaction of "the identities of all individuals [except the complainant, Dr. Meloche, and Mr. Zelinsky] without regard to the content or context" from responsive emails and recorded statements and the failure to cite a statutory basis for these redactions. Additionally, The Courier objected to Metro Government's decision to withhold the recorded statements of Metro Animal Services spokesperson Jackie Gulbe and contract veterinarian Dr. Kendall Clay. The Courier questioned Metro Government's reliance on KRS 61.878(1)(i) and (j), and the argument that these statements "were not adopted as the basis for any final action taken by the agency," asserting that the recorded statements were "factual account[s] of events" and not "drafts, notes, correspondence, " "recommendations, " or "memoranda" as strictly required by the exceptions. Alternatively, The Courier argued that because Dr. Meloche resigned before final disposition of the sexual harassment complaint, final Metro Government action consisted of the decision to take no action, and the recordings forfeited their preliminary characterization.
In correspondence directed to this office, Metro Government explained that the emails and audio recordings were inadvertently redacted "beyond the exemptions claimed by Metro Government" and agreed to provide the portions of the recordings that were improperly redacted, but reaffirmed its position that "the names or identifying information of third parties who were identified as being subjected to possible sexual harassment were properly redacted . . . pursuant to KRS 61.878(1)(a)." In support of the latter position, Metro Government asserted that the public's interest in monitoring its response to sexual harassment allegations was served by "disclosure of the substance" of the records while the privacy interests of third parties who the complainant "believes . . . may have been subjected to sexual harassment" were protected.
Relying on a decision issued by the Attorney General in 2002, Metro Government also defended its decision to withhold the recorded statements of Dr. Clay and Ms. Gulbe, observing:
Audio recordings of witness interviews contain opinion and/or perceptions of the witnesses' account of particular incidents are not merely factual documents. As previously argued by Metro [Government] in 02-ORD-18, statements of facts along with the witnesses and opinions are intertwined within the deliberative process and therefore are exempt pursuant to KRS 61.878(1)(i) and (j) unless otherwise adopted in the final decision.
Noting that the only substantiated allegation against Dr. Meloche, and the only allegation for which he was reprimanded, related to an incident that occurred on July 3, 2008, Metro Government explained that neither Dr. Clay nor Ms. Gulbe was present when the incident occurred. Metro Government therefore maintained that nothing in their recorded statements "could have been adopted as part of the final action" and the statements retained their preliminary characterization. Having considered the arguments advanced by The Courier-Journal and Metro Government, and reviewed the records submitted to this office pursuant to KRS 61.880(2)(c), we affirm Metro Government's position.
Metro Government acknowledges that it inadvertently erred in withholding the names of individuals referenced in the emails and recorded statements other than those individuals who were identified as having been subjected to possible sexual harassment and whose names it withheld on the basis of KRS 61.878(1)(a). The latter position finds support in a number of open records decisions issued by the Attorney General. For example, in 99-ORD-39 this office held that although records relating to allegations of sexual harassment leveled against a public employee were generally accessible, the agency was permitted to:
take reasonable steps to protect the identity of the complainant 2 by masking her name, and any personally identifiable information, which appears in the complaint, investigative report, and reprimand along with the names of other complainants and witnesses . . . [The public's interest would not] be served by disclosure of this information, and . . . the complainants' strongly substantiated privacy interests are clearly superior.
99-ORD-39, p. 13; accord, 96-ORD-98; 98-ORD-45; 05-ORD-177. In each of these decisions, the Attorney General recognized that "sexual harassment complaints are of a uniquely sensitive nature," and extended protection to the complainants' identities on the facts presented.
In the appeal before us, Metro Government convincingly argues that "[t]he mere fact that the complainant believes that these individuals may have been subjected to sexual harassment should not subject the individuals to public disclosure. " This is especially true, Metro Government argues, in view of the fact that these individuals did not make similar allegations, suggesting "that either [they] do not feel that they were subjected to sexual harassment or they do not wish to pursue a claim against [Dr. Meloche]." Accordingly, we find that Metro Government may withhold the names of "third-parties who were identified as being subjected to possible sexual harassment" pursuant to KRS 61.878(1)(a), but must, as it has acknowledged, release all other names that were inadvertently redacted.
We are equally persuaded by Metro Government's argument that 02-ORD-18 supports nondisclosure of the recorded statements of Dr. Clay and Ms. Gulbe in their entirety. In that appeal, The Courier argued:
Public agencies cannot make blanket determinations that every record in an internal affairs file other than the complaint and final determination are "preliminary." In fact, transcripts of witness interviews and investigative summaries are not exempt under KRS 61.878(1)(i) and (j) since they are not "preliminary drafts" or "notes" and do not contain "preliminary recommendations" or are not "preliminary memoranda in which opinions are expressed or policies formulated or recommended. "
02-ORD-18, p. 2-3. It was The Courier's position that the investigative records "are simply transcripts of interviews of witnesses and memoranda describing the factual accounts of witnesses." At page 5 of 02-ORD-18, we rejected The Courier's argument that witness statements and investigative summaries were not protected by KRS 61.878(1)(i) and (j) because the courts, in construing these provisions, did not specifically identify those records as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency;
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended [.]
We explained that the courts:
intended their reasoning to apply to investigative files . . ., including witness transcripts and investigative summaries, unless adopted . . . as the basis of final action. These records reflect the opinions of witnesses relative to what they observed, and the opinion of the investigator who prepared the summary relative to what observations and comments to include and exclude. We are not prepared to read into [the caselaw], a distinction between records within the investigative file that the [courts] did not make in their decision[s].
Id. Continuing, we observed:
In our view, the proper standard for determining when a record within an investigative file forfeits its preliminary character is found at page 659 of City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982):
Accord, Kentucky State Board of Medical Licensure v. Courier-Journal, 663 S.W.2d 953, 956, 957 (Ky. App. 1983) holding that "once such notes or recommendations are adopted by the [agency] as part of its actions, the preliminary characterization is lost," and "those documents defined in Subsections [(i) and (j)] which became a part of the records adopted by the [agency] as the basis of its final action, become releasable as public records"; and University of Kentucky v. Courier-Journal, 830 S.W.2d 373, 378 (Ky. 1992) ratifying the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action.
Id. at 5-6.
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001), upon which The Courier relies, does not alter our analysis. There, the applicant requested access to the complaint and final action in a case of employee misconduct. The errant employee had resigned before discipline could be imposed, arguing that his resignation precluded final agency action, and therefore all records relating to the allegations of misconduct leveled against him were forever excluded from public inspection by KRS 61.878(1)(i) and (j). The court rejected this argument, concluding that "a resignation from a position by an employee before the [agency] has reached a decision . . . is a 'final action. '" Palmer at 597. Although the court directed disclosure of the allegations, it did not address records compiled in the agency's investigative files such as recorded statements. 3
The recorded statements at issue in the instant appeal are investigative records which, under this line of authority, retain their preliminary characterization unless they were adopted as a basis of final action. The Courier-Journal presents no facts or arguments that warrant us in departing from these precedents. The record on appeal reflects that Metro Government reprimanded Dr. Meloche for an incident that occurred on July 3, 2008, which neither Dr. Clay nor Ms. Gulbe witnessed. The Department of Human Resources' memorandum concerning the complaint does not reference their statements in addressing any of the allegations, substantiated or unsubstantiated, leveled against Dr. Meloche by the complainant. Nor does the written reprimand issued to Dr. Meloche on January 12, 2009. From these records it is impossible to conclude that the statements were adopted as a basis for final action. This being the standard by which the courts and this office determine whether an investigative record forfeits its preliminary characterization, we find that Louisville Metro Government properly withheld, in their entirety, the recorded statements of Dr. Clay and Ms. Gulbe.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Jon L. FleischakerDee AllenTerri A. Geraghty
Footnotes
Footnotes
1 Pursuant to KRS 61.880(2)(b)1., the Attorney General extended the deadline for issuance of his decision by thirty days.
2 In the instant appeal, the complainant's identity has been made public.
3 Thus, at page 598 of the opinion, the court observed:
We believe the complaint against Palmer presents a matter of unique public interest. At the time of the complaint, Palmer was an Owensboro police officer, who was sworn to protect the public. The complaint charged specific acts of misconduct by Palmer while he was on duty. Since the question of the disclosure of the details of this alleged misconduct is the reason for this appeal, we will generally describe the alleged misconduct as Palmer neglecting his duty to the public by having an inappropriate relationship with another police officer while on duty. We believe the public has a legitimate interest in knowing the underlying basis for a disciplinary charge against a police officer who has been charged with misconduct . . . .
(Emphasis added.)